of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be nonexistent; or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition."

In The Hoffnung, 6 C. Rob. 112, 117, Sir William Scott said: "When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed." And undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it may be of such a character, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect which "necessarily led neutral vessels to believe these ports might be entered without incurring any risk." The Nancy, 1 Acton, 57, 59.

But it cannot be that a vessel actually captured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected.

As we hold that an effective blockade is a blockade so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law.

Even as long ago as 1809, in The Nancy, 1 Acton, 63, where the station of the vessel was sometimes off the port of Trinity

and, at others, off another port more than seven miles distant, it was ruled that: "Under particular circumstances a single vessel may be adequate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighboring port;" although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be performed.

The ruling of Dr. Lushington in The Franciska, above cited, was to that effect, and the text-books refer to other instances.

The learned District Judge, in his opinion, refers to the treaty between France and Denmark of 1742, which provided that the entrance to a blockaded port should be closed by at least two vessels or a battery on shore; to the treaty of 1760 between Holland and the Two Sicilies prescribing that at least six ships of war should be ranged at a distance slightly greater than gunshot from the entrance; and to the treaty between Prussia and Denmark of 1818, which stipulated that two vessels should be stationed before every blockaded port; but we do not think these particular agreements of special importance here, and, indeed, Ortolan, by whom they are cited, says that such stipulations cannot create a positive rule in all cases even between the parties, "since the number of vessels necessary to a complete investment depends evidently on the nature of the place blockaded." 2 Ortolan, (4th ed.) 330, and note 2.

Nor do we regard Sir William Scott's judgment in The Arthur, (1814) 1 Dodson, 423, 425, as of weight in favor of claimants. In effect the ruling sustained the validity of the maintenance of blockade by a single ship, and the case was thus stated: This is a claim made by one of His Majesty's ships to share as joint-captor in a prize taken in the river Ems by another ship belonging to His Majesty, for a breach of the blockade imposed by the order in council of the 26th of April, 1809. This order was, among others, issued in the way of retaliation for the measures which had been previously adopted by the French government against the commerce of this country. The blockade imposed by it is applicable to a very great extent of coast, and was never intended to he maintained according to the usual and regular mode of enforcing blockades, by stationing a number of ships and forming as it were an arch of circumvallation around the mouth of the prohibited port. There, if the arch fails in any one part, the blockade itself fails altogether; but this species

of blockade, which has arisen out of the violent and unjust conduct of the enemy, was maintained by a ship stationed anywhere in the neighborhood of the coast, or, as in this case, in the river itself, observing and preventing every vessel that might endeavor to effect a passage up or down the river."

Blockades are maritime blockades, or blockades by sea and land; and they may be either military or commercial, or may partake of the nature of both. The question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground.

We are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the port, that is sufficient, since thereby the blockade is made practically effective.

Assuming that the Olinde Rodrigues attempted to enter San Juan, July 17, there can be no question that it was dangerous for her to do so, as the result itself demonstrated. She had had actual warning twelve days before; no reason existed for the supposition that the blockade had been pretermitted or relaxed; her commander had no right to experiment as to the practical effectiveness of the blockade, and, if he did so, he took the risk; he was believed to be making the attempt, and was immediately captured. In these circumstances the vessel cannot be permitted to plead that the blockade was not legally effective.

[The court then finds that while the conduct of the Olinde Rodrigues on July 17 was so suspicious as to justify seizure the facts did not clearly show an intent to enter the port of San Juan.]

The entire record considered, we are of opinion that restitution of the Olinde Rodrigues should be awarded, without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship.

The decree of the District Court will be so modified, and As modified affirmed. MR. JUSTICE MCKENNA dissented on the ground that the evidence justified condemnation.

NOTE. In 1806-07 Great Britain and France, by a series of proclamations which were fantastic in their absurdity, purported to establish complete blockades of each other's coasts. See The Arthur (1814),

1 Dodson, 423; The Fox (1811), Edwards, 311. The obvious impossibility of sustaining such extravagant pretensions and the damage inflicted upon neutral commerce strengthened the view which had been many times asserted that neutrals should recognize only such blockades as belligerents could make effective. In 1800, John Marshall. then Secretary of State, wrote to the American minister to England:

If the effectiveness of the blockade be dispensed with, then every port of the belligerent powers may at all times be declared in that state, and the commerce of neutrals be thereby subjected to universal capture. But, if this principle be strictly adhered to, the capacity to blockade will be limited by the naval force of the belligerent, and, of consequence, the mischief to neutral commerce cannot be very extensive.

Moore, Digest, VII, 788.

As to what constitutes an effective blockade see Geipel v. Smith (1872), L. R. 7 Q. B. 404, 410; The Adula (1900), 176 U. S. 361; Hooper v. United States (1887), 22 Ct. Cl. 408; The King Arthur (1905), Takahashi, 721. The number and position of the blockading vessels is immaterial so long as they are able to make the blockade effective, The Franciska (1855), 10 Moore, P. C. 37, and in the absence of evidence to the contrary the testimony of the commander of the blockading squadron as to its effectiveness will be accepted, The Nancy (1809), 1 Acton, 63. The fact that blockading vessels are not seen on approaching the port does not render the blockade ineffective, The Andromeda (1865), 2 Wallace, 481, nor will a temporary withdrawal of the blockading force because of stress of weather, The Frederick Molke (1798), 1 C. Robinson, 86; The Columbia (1799), 1 C. Robinson, 154, but lack of diligence on the part of the blockading squadron will be evidence that there was no blockade actually in existence, The Juffrow Maria Schroeder (1800), 3 C. Robinson, 147. Batteries ashore as well as ships afloat may be used in the maintenance of a blockade, The Circassian (1865), 2 Wallace, 135, and it would seem that temporary obstructions in the channels and harbors of the blockaded port are permissible. See Moore, Digest, VII, 855. As to blockade by sub-marine mines during the Great War, see Phillipson, International Law and the Great War, 381. See also Hyde, II, 655; Moore, Digest, VII, 788.

CHAPTER XVIII.

CONTRABAND.

SECTION 1. ABSOLUTE AND CONDITIONAL CONTRABAND.

THE JONGE MARGARETHA.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1799.
1 C. Robinson, 189.

This was a case of a Papenberg ship, taken on a voyage from Amsterdam to Brest with a cargo of cheese, April 1797. .

Sir W. SCOTT [LORD STOWELL]-There is little reason to doubt the property in this case, and therefore passing over the observations which have been made on that part of the subject, I shall confine myself to the single question: Is this a legal transaction in a neutral, being the transaction of a Papenberg ship carrying Dutch cheeses from Amsterdam to Brest, or Morlaix (it is said) but certainly to Brest? or as it may be otherwise described, the transaction of a neutral carrying a cargo of provisions, not the product and manufacture of his own. country, but of the enemy's ally in the war-of provisions which are a capital ship's store-and to the great port of naval equipment of the enemy.

If I adverted to the state of Brest at this time, it might be no unfair addition to the terms of the description, if I noticed, what was notorious to all Europe at this time, that there was in that port a considerable French fleet in a state of preparation for sallying forth on a hostile expedition; its motions at that time watched with great anxiety by a British fleet which lay off the harbour for the purpose of defeating its designs. Is the carriage of such a supply, to such a place, and on such an occasion, a traffic so purely neutral, as to subject the neutral trader to no inconvenience?